Minor v. Minor

62 S.E.2d 60 (1950)

232 N.C. 669

MINOR et ux. v. MINOR et ux.

No. 456.

Supreme Court of North Carolina.

November 22, 1950.

*62 Sam J. Morris, Raleigh, for plaintiffs, appellees.

Ellis Nassif, Raleigh, for defendants, appellants.

ERVIN, Justice.

Under the allegations of the complaint, the judicial admissions of the defendants at the trial, and the answers to the first and second issues, the plaintiffs were entitled to have the court reform the deed by inserting in it the omitted agreement of the parties requiring the male defendant to support the plaintiffs for the remainder of their lives. Cuthbertson v. Morgan, 149 N.C. 72, 62 S.E. 744. Instead of entering a judgment of reformation, however, the court decreed that the conveyance should be cancelled in its entirety. The defendants challenge the propriety of this action by an appropriate exception to the judgment.

It is a common practice in this State for a person to convey his real property to another in consideration of a promise by the latter to furnish him with support for the remainder of his life. In such case, the agreement of the grantee to support the grantor is a valuable consideration for the transfer of the property. Lee v. Ledbetter, 229 N.C. 330, 49 S.E.2d 634; Ayers v. Banks, 201 N.C. 811, 161 S.E. 550; Salms v. Martin, 63 N.C. 608.

A provision in a deed for the support of the grantor by the grantee may constitute a mere covenant, or operate as a condition, depending solely upon the expressed intention of the parties to the conveyance. Thus the language employed *63 in a particular instrument may make the performance of the promise of the grantee to support the grantor a condition precedent to the vesting of the estate, Cox v. Hinshaw, 226 N.C. 700, 40 S.E.2d 358, or a condition subsequent for which the estate might be divested. Barkley v. Thomas, 220 N.C. 341, 17 S.E.2d 482; Huntley v. McBrayer, 169 N.C. 75, 85 S.E. 213; Britton v. Taylor, 168 N.C. 271, 84 S.E. 280.

But the law does not favor either the postponement of the vesting of estates by conditions precedent, or the destruction of estates already vested by conditions subsequent. In consequence, courts will construe the words of a deed requiring the grantee to support the grantor to create a mere covenant rather than a condition, if they will reasonably admit of such interpretation. Helms v. Helms, 135 N.C. 164, 47 S.E. 415, rehearing denied in 137 N.C. 206, 49 S.E. 110.

Where an agreement of the grantee to support the grantor as stated in the deed, or in another instrument executed in consideration of the deed, is simply a covenant, it falls into one of three legal categories, depending entirely upon the expressed intention of the parties. Marsh v. Marsh, 200 N.C. 746, 158 S.E. 400. A covenant of the first class imposes upon the grantee a mere personal obligation to support the grantor. Higgins v. Higgins, 223 N.C. 453, 27 S.E.2d 128; Bailey v. Federal Land Bank, 217 N.C. 512, 8 S.E.2d 614; Hart v. Dougherty, 51 N.C. 86; Taylor v. Lanier, 7 N.C. 98, 9 Am. Dec. 599. A covenant of the second class makes the obligation of the grantee to support the grantor a charge or lien on the rents and profits from the land conveyed. Wall v. Wall, 126 N.C. 405, 35 S.E. 811. A covenant of the third class makes such obligation a charge or lien on the land itself. Marsh v. Marsh, supra; Fleming v. Motz, 187 N.C. 593, 122 S.E. 369; Bailey v. Bailey, 172 N.C. 671, 90 S.E. 803; Helms v. Helms, supra; Laxton v. Tilly, 66 N.C. 327.

The distinction between conditions and covenants becomes important in determining the remedy available to a grantor whose grantee has breached the agreement to furnish support. It is settled law in this jurisdiction that the nonperformance by the grantee of an agreement to support the grantor does not authorize the cancellation of the deed made in consideration of the agreement, unless the performance of the agreement is made a condition precedent to the vesting of the estate, or a condition subsequent for which the estate might be divested. Helms v. Helms, supra. The rule in respect to covenants is epitomized in this headnote to a decision handed down exactly one hundred years ago: "Where the feme plaintiff had conveyed her estate in dower to the defendant, and he had covenanted, in consideration thereof, to support her, Held, that, if he failed to do so, she could not set aside the whole contract, but must resort to her remedy at law for damages." Murray v.King, 42 N.C. 19

The reasoning underlying this principle is well stated by the Supreme Court of Alabama in these words: "The first ground is obviously wanting in merit. The fact that J. C. Knight (the grantee) failed to carry out his undertaking, or that both he and his wife failed and refused to carry out the undertaking, in consideration of which the conveyance was made, is no ground for the cancellation of the conveyance. The undertaking was in no sense a condition subsequent, upon the breach of which the conveyance was void or voidable, but, at most, it was a mere covenant on the part of J. C. Knight to pay, acquit, and satisfy the price of the land in a particular way, or, rather, the consideration upon which the deed was made; and there is no more room or reason for a cancellation of the conveyance for default in the satisfaction of such a consideration, or for failure to carry out such an undertaking, than there would have been had the consideration been so much money, and the purchaser had made default in the payment thereof. In both cases the remedy of the vendor would be on the undertaking, and not by way of cancellation, and revestiture of *64 title in himself." Gardner v. Knight, 124 Ala. 273, 27 So. 298, 300.

The remedy available to a grantor whose grantee has breached a covenant to furnish support is an action for damages. Murray v. King, supra. The proper measure of damages in such action is the value of the promised support lost by the grantor. 50 Am.jur., Support of Persons, section 26. The judgment for the damages suffered by the grantor is enforced as a charge or lien on the rents and profits from the land in case the covenant in question is a covenant of the second class, Wall v. Wall, supra, or as a charge or lien on the land itself in the event the covenant involved is a covenant of the third class. Cuthbertson v. Morgan, supra.

The task of applying these principles to the instant case must now be performed. There is no suggestion in the record of any understanding that the promise of the male defendant to furnish the plaintiffs with support was to operate as a condition precedent. Moreover, all of the indicia of a condition subsequent are lacking. Shannonhouse v. Wolfe, 191 N.C. 769, 133 S.E. 93; Hall v. Quinn, 190 N.C. 326, 130 S.E. 18. When the record in this cause is analyzed in the light of pertinent precedents, it is manifest that the promise of the male defendant to furnish the plaintiffs with support for the remainder of their lives is simply a covenant of the third class, i. e., a covenant making the obligation of the male defendant to support the plaintiffs a charge or lien on the interest conveyed to him by the deed in suit. Helms v. Helms, supra; Laxton v. Tilly, supra.

This being so, the court erred in adjudging the cancellation of the deed. Furthermore, it committed error in submitting the third issue to the jury; for the pleadings did not put the right of the plaintiffs to recover damages for the alleged breach of the agreement in issue.

For the reasons given, the answer to the third issue is set aside, and the judgment is vacated, and the cause is remanded to the Superior Court of Wake County, with directions that it enter a final judgment on the admissions of the defendants and the answers to the first and second issues reforming the deed in suit by inserting in it the agreement of the male defendant to support the plaintiffs during the remainder of their lives. If the plaintiffs should desire to claim damages of the male defendant for any supposed breach of the agreement, they are at liberty to proceed against him in another action.

Error.